I wrote a post the other day stating that mere fear of contracting the COVID19 virus is not a disability for purposes of the Americans with Disabilities Act. See that post here. But, in a similar lawsuit concerning mail-in balloting, the Western District of Texas has found that anxiety over the coronavirus does indeed amount to a disability for purposes of voting. See that decision here in the case of Texas Democratic Party v. Abbott, No. 20-CA-438 (W.D.Tex. 5/19/2020). The court noted that in the past few years, the Texas Attorney General Ken Paxton has authored contradictory AG opinions regarding voting. He issued an opinion in 2015 saying that no particular definition of disability is required for mail-in voting. In 2017, he issued an AG opinion stating that sexual deviancy qualified as disabled under the Texas Election Code. These decisions contrast to the same AG now claiming fear of infection does not qualify as a disability. The court rightly noted the apparent hypocrisy in AG Paxton’s positions.
The court also noted the lack of voter fraud in Texas. And, the court noted that under the Texas Election Code, persons over the age of 65 can vote by mail regardless of disability. If vote by mail has so much fraud, why is that possible?
The Texas Election Code defines “disability” as a physical condition that prevents a voter from appearing at a polling place without a likelihood of injuring the voter’s health. This definition is more broad than the definition found in the ADA. The ADA definition focuses on how an impairment affects a person’s major life activities. The court points to the documented stress and anxiety currently among the U.S. population due to the coronavirus. The court then finds that fear and anxiety are intertwined with the health of voters. The lack of immunity is a physical condition, says the court. The court then grants a temporary restraining order allowing voters, Democratic and Republican, to cite the coronavirus and fear as basis for voting by mail.
Judge Biery’s decision is not scholarly. He points to no precedent for his ruling. There probably is no precedent. The decision will surely be appealed. Fear of infection has been held in federal courts as not a disability under the ADA. The Texas Election Code definition of disability is broader. But, I am doubtful that lack of immunity will be held to constitute a “physical condition.” Although, as a matter of policy, it ought to be. We should institute policies that encourage voting, not discourage it. But, it is true that the current AG has taken contradictory positions in the past.
In a very brief order on May 20, the Fifth Circuit issued a stay stopping Judge Biery’s decision. See that decision here. The stay does not overrule the lower court’s decision.